The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1887-11-04
A GREAT LEGAL BATTLE.
Synopsis Of the Arguments in the
Anarchists Case.
Before the Supreme Bench j. Randolph
Tucker and Ben Butler Argue for a
Writ of Error-nessrs. Grinneu and
Hunt Oppose-The Points Made.
ef#apfNe FoR FHE 1NAR cIHiIg;;Tis

VI OOuC4G4 cPOCCA 1YOSpSIudy bu6
Supreme Court took the Anarchist case I'M
der advisement A decision will be rem
dered probably on Monday. There is much
speculation as to the result O. Tie appliea-
ton for writ of errct LAWYERS Incline to
the opinion that if the writ be granted it
will probably be awarded on the last prop
osition in reference to the alleged in
correctness of the record of the Sq-
preme Court, which shows the deEend-
ants to have beeh present in lieu of
absent, when re-sentenced by that court
The hearing of argument began on Thurs
day at 10 p in, Hon. r. Randolph Tuck
er, of Virginia, presenting the case on be-
half of the condemned men. Asynopsis of
his address is as follows:
He claimed that it was not necessary for him
to show as a condition precedent to the
granting of the writ that the action com.
planned OF in the court below was actually re.
pugnant to- or in violation of the constitution;
it was only necessary to show. that conflict
mad arisen, that there was question whether
the action complained of was not repugnant to
the constitution That was enough to give that
court Jurisdiction.
The policy of this Court, he said, had been to
deal literally with petitions for writs of error
in civil cases. How much more should it deal
literally with d petition for writ Of error in
q criminal case involving the issues of life
and death. Mr.. Tucker then proceeded to a
careful analysis of the fourteenth amendment
and an attempt to ascertain the meaning Of the
words "due process of law" 1t seemed, he
| said, to be every where conceded that due
process of law required trial by jury of ones
| peers 1t is essential that the jury should be
unbiased, unprejudiced and impartial, and that
| itshould not be a class jury.
| Mr. Tucker. asserted that the jury law of
| the State OF Illinois was unconstitutional in
| that it provided that the forming of an opinion
| from reports or from newspaper accounts
Of q certain transaction should not, nee.
| essarily disqualify the person having sueh
/ an opinion from sitting in Judgment
| on that transaction as juror. Even
| although the law might seem to be fair and
| just if by construction and administration it
were made to deny to the prisoners the right
/ of a trial by tar and impartial jury then
such construction and Administration con-
| stituted the law and made it unconsti-
! tutional. The. construction given to the
| law III this case was different from the
construction given to it in a large num-
| Der of other cases in the same State. He then
referred to the objections made by the defense
at the trial to the rulings of the court in the
matter Of challenges and to various other rul-
ings and decisions of the trial court which had
the effect of denying to the prisoners fair trial
/ by an impartial jury.
! Turning then to another question raised by
! the case, which, he said, was new one in this
/ court he quoted the second clause OF the
! fourteenth amendment to the effect
that no State shall make or en-
force any law which shall abridge
the privileges or immunities of citizens
i OF the United States. Among the privileges
and immunities' thus guaranteed by the Sour
| teenth amendment were, he contended, those
set forth in the first ten amendments to the Fed
eral constitution, such as 'sthe right of citizens
to be secure in their persons, houses, papers
| and effects against unreas enable searches and
seizures" Fourth amendmenD, and the immu-
nifty designated in the clause of the fifth
amendment which provides, that no person
/ shall be compelled in any criminal case to be a
witness against himself.
i 1t was his belief that unless the privileges
and immunities set forth in the first ten amen,.
ments were specifically said in terms to be
! merely limitations of Federal power they were
| privileges and immunites which come within
the privileges of the fourteenth amendment
/ and were guaranteed by it.
/ Justice >Field-s"Then you would bring all
! questions to this court can not conceive of
/ any question which can not be brought here if
the fourteenth amendment makes the 'privi-
1 leges and lmmunites' to which it refers include
| all those of the first ten amendnents.'
1 4nAs uChCl odlu LIZ WOuIu dululG Gudb III Was
a new question, but that he should like to
argue it. In the only two cases in which this
i question had been raised the context showed
| that the purpose was to limit the Federal pow.
or. "Now, T make the assertion -
said he that the right to be ex-
empt from unreasonable searches and
seizures, the right to freedom OF
speech, the right of the citizen against self.
accusation and the right OF the citizen not to
! bn fpvi0n Irin n ii1Ty which to
him by virtue of the constitution of the United
! States being so. the fourteenth amendment
comes in and says that mo State shall make
or enforce any law which abridges the rights or
1 PRIVILEGES of citizens"
Turning TO the action and rulings of the trial
/ court Mr.. Tucker said that the defense were
driven to peremptory challenges in order to ex-
clude jurors who should have been rejected for
cause, ard that thereby there was limitation
of the right of peremptory challenges, which
this court has held to be one of the highest priv
| ileges of prisoner.
Mr.. Tucker animadverted severely upon the
| ravaging Of the petitioners private papers and
| effects which were used in evidence against
them, thus compelling them to be witnesses
/ against themselves. He said the court knew
well that he had no sympathy with anarchism
or its purposes, but that did not prevent him
from asking justice for these men. 'aThe same
| constitution is over us all. I ask the court to
interpose its shield and protect these men, be-
causeI may need 1t myself. I know of nc
anarchy abroad in this land which the
| American people need fear except an.
aehy in the administration of justice. I fear
| that when anarchy dons the ermine of Justice
and administers lynch law in violation of the
supreme law of the land, Whether the prison
/ er's point can be sustainedi is question you
i can only decide after an examination Of the
| record and hearing. Strike after you hear,
! but don't strike before you hear''
Attorney-Gen Hunt, of Illinois, fol
lowed on behalf of the State His argument
was clear, calm and forcible, dealing only
with the cold abstract propositions of law
involved A synopsis is as follows:
He claimed that to warrant the issuance OF
/ the writ it must appear, from the record: /.
j That there was Federal question involved;
and 2. 1t must appear from the record that
| such question was raised and decided in
/ the State court. The record did not
show that any Federal question was in
/ volved. The prohibitions contained in the
first ten amendments to the constitution were
/ limitations on the powers of the Federal Gov
! ernment and not upon the States. So far as
the petitioners relied upon any thing contained
in those amendments they could have no stand
ing in this court The fourteenth amendment
| was equally foreign to any right, privilege or
immunity here claimed by the petitioners. The
record would show that the complaint was, not
that the State had made or was enforcing a law
| which deprived the petitioners of any of the
| privileges or immunities guaranteed by that
section, but that they were deprived of rights by
/ an erroneous construction of the law placed
| upon it by the trial court of the State Peti
tieners did not claim in the Supreme Court OF
1 the State that the Illinois act of 1874 was re-
pugnant to the constitution, treaties or laws OF
| the United States, nor that the authority OF
| the court was exercised under it, but that
the act was constitutional and valid, and the
| court exercised its power in violation of the
| law. Petitioners were tried in the &C rts OF
| the State under the laws of the State, and that
constituted due process of law. 1t was not
material that this or another court might have
ruled differently under the law. Due process
oflaw meant 'law of the land
Turning TO the composition of the jury in the
trial court the Attorney General said that he
| did not see how the personnel of the jury
which tried petitioners IN this case could prop
erly be submitted to the court or considered by
IL in the present proceeding. Tbs inquiry
| must be made as to the constitutionality Of the
| july law of the State of Illinois, and not as to
how State court may have construed that law.
Ire record showed, he believed, that on the